THE  INFLUENCE  OF  NEW  YORK  ON  AMERICAN 

JURISPRUDENCE 


By  HORATIO  SEYMOUR 


Reprinted  from  the  Magazine  of  American  History,  Ap?il,  1879 


A.  S.  BARNES  &  CO 
NEW  YORK   and  CHIC  AG 


?Ex  ICtbrtH 


SEYMOUR  DURST 


"When  you  leave,  please  leave  this  hook 

Because  it  has  been  said 
"  Ever' thing  comes  f  him  who  waits 

Except  a  loaned  hook." 


Avery  Architectural  and  Fine  Arts  Library 
Gift  of  Seymour  B.  Durst  Old  York  Library 


MAGAZINE  OF  AMERICAN  HISTORY 


Vol.  Ill  APRIL  1879  No-  4 


THE    INFLUENCE    OF    NEW    YORK    ON  AMERICAN 

JURISPRUDENCE 

WE  cannot  feel  the  full  interest  of  the  history  ol  the  opening  of  the 
new  capitol  of  the  State  of  New  York  unless  we  bear  in  mind 
the  events  running-  through  nearly  three  centuries,  which  have 
consecrated  the  ground  on  which  it  stands.  There  is  no  place  in  the 
Union  which  is  associated  with  so  many  varied  and  far-reaching  facts, 
which  have  influenced  the  destinies  of  this  continent,  as  the  city  of  Albany. 
For  more  than  two  hundred  and  fifty  years  the  flags  of  Holland,  of 
Britain,  or  of  the  American  Union  have  waved  over  it.  Before  our  Inde- 
pendence they  were  hung  out  upon  the  battlements  of  forts,  built  there  to 
guard  against  savage  foes  or  to  resist  the  invasions  of  the  armies  of  France 
or  of  Britain  during  the  French  or  revolutionary  wars.  From  its  earliest 
settlement  to  the  present  day,  under  all  governments,  what  has  been  done 
at  this  point  has  concerned  not  alone  its  citizens,  or  those  of  this  province 
or  State,  but  the  people  of  all  the  colonies  which  entered  into  our 
Union,  and  in  no  small  degree  nearly  all  sections  of  this  great  conti- 
nent. A  glance  at  its  history  will  show  that  Albany  was  in  fact  the 
colonial  capital ;  the  point  at  which  councils  were  held,  treaties  were 
made,  armies  were  organized.  It  was  the  base  from  which  they  moved 
upon  hostile  regions  ;  it  was  the  point  which  in  all  wars  our  enemies 
sought  to  conquer.  It  was  not  an  accidental  thing  that  the  project 
of  a  union  between  the  colonies  was  first  put  in  form  in  Albany  by 
Benjamin  Franklin  in  1754.  The  seeds  of  that  conception  were  sown 
many  years  before,  and  slowly  but  surely  germinated  under  the 
influence  of  events  constantly  occurring  within  the  province  of  New 
York.  Albany  has  been  justly  termed  the  birthplace  of  the 
Union ;  not  on  account  of  some  accidental  .  gathering,  or  bold 
conception  of  a  leading  mind.  A  long  series  of  events  had  made  for 
many  purposes  a  practical  union  of  the  colonies.    The  citizens  who  had 


60* 


21 8        INFLUENCE  OF  NEW  YORK  ON  AMERICAN  JURISPRUDENCE 


lived  for  half  a  century  under  the  flag  of  Holland,  had  been  taught 
the  value  of  the  maxim  which  bound  its  provinces  into  one  nationality — 
"  In  unity  there  is  strength!*  It  was  at  this  point  that  the  agents  of  the 
colonies  on  the  Atlantic  coast  first  learned  about  the  interior  of  the 
continent  and  its  systems  of  lakes  and  rivers.  These  taught  them  that 
the  people  who  lived  upon  their  banks  and  courses  should  be  united 
by  some  bond  of  union  which  would  give  them  not  only  the  benefit 
of  united  strength,  but  freedom  of  intercourse  and  benefits  of 
commerce. 

When  in  1609,  Hendrick  Hudson,  in  search  of  a  direct  water 
route  from  Europe  to  the  eastern  shores  of  Asia,  reached  the 
site  of  Albany,  his  hopes  were  blighted  on  finding  that  he  was  ascending 
a  great  river  and  not  floating  upon  an  arm  of  the  sea,  which  would 
bear  him  to  the  Pacific  ocean,  and  crown  with  success  the  search  to 
which  he  had  devoted  his  energies  and  life.  It  is  a  sad  thought  that  in 
the  following  year  he  perished  without  knowing  that  he  had  made  a 
discovery  in  value  far  beyond  the  one  which  he  sought ;  that  what  he 
deemed  a  failure  would  give  him  enduring  fame.  He  did  not  know 
that  the  wind  and  tides  which  had  swept  his  ship  through  the  gorge  of 
the  highlands  had  borne  it  beyond  the  mountain  range,  which, 
for  more  that  a  thousand  miles,  made  a  barrier  between  the 
Atlantic  coast  and  the  interior  of  this  continent.  He  perished, 
miserably  betrayed  by  his  seamen,  without  the  knowledge  that  the  range 
of  hills  which  he  saw  from  this  point,  stretching  westward  through  the 
southern  part  of  this  Starte,  was  one  of  the  most  remarkable  watersheds 
on  the  face  of  the  earth ;  that  from  its  northern  and  southern  slopes 
were  poured  streams  which  found  outlets  in  the  frozen  region  of  the 
north  or  tepid  waters  of  tropical  seas.  He  never  knew  that  the 
noble  stream  which  gives  him  enduring  fame  would  be  the  pathway 
between  the  ocean  and  a  system  of  rivers  which  are  God's  bonds  of 
union,  holding  together  all  sections  of  our  country  in  ways  more  lasting 
than  covenants  or  constitutions.  He  did  not  in  the  madness  of 
delirium,  which  weakened  nature  often  brings  to  hide  the  horrors  of 
approaching  death,  imagine  anything  so  wonderful  as  the  fact  that  he 
had  discovered  a  valley  through  which  would  pass  the  greatest  move- 
ments of  the  human  race  which  history  has  recorded.  Not  one  which 
by  the  invasions  of  wild  hordes,  or  the  march  of  armies,  carried  death 
and  desolation  in  their  tracks,  but  a  movement  of  civilization  upon 
barbarous  wastes,  which  has  filled  this  great  continent  with  arts  and 
commerce,  and  prosperous  towns  and  cities.     If,  at  a  moment  when 


INFLUENCE  OF  NEW  YORK  ON  AMERICAN  JURISPRUDENCE  2ig 


crushed  hopes,  cruel  treachery  and  a  terrible  death  overwhelmed  him, 
he  could  have  had  but  a  glimpse  of  all  that  followed  his  discovery  of 
the  grand  river  flowing  by  the  Capital  of  our  State,  how  would  the 
gloom  of  despair  have  brightened  into  the  joy  of  glorious  triumph! 

Commercial  enterprise  followed  close  upon  the  discovery  of  Hudson. 
Before  the  character  of  our  Atlantic  coast  had  been  learned  the  Hol- 
landers sent  trading  ships  to  the  port  of  Albany,  and  in  1614  they  made 
a  settlement  on  an  island  adjoining  the  lower  part  of  the  city.  Fort 
Orange  stood  upon  the  bank  of  the  river.  To  protect  the  Gitizens 
palisades  were  put  up  around  the  settlement,  and  guard  houses  built 
upon  the  high  ground  now  crowned  by  the  Capitol.  This  hill,  then 
flanked  by  deep  ravines  on  either  side,  and  by  a  steep  bluff  in  front, 
overhung  the  site  of  the  city.  The  foot  of  this  high  cliff  closed  up 
State  street  where  St.  Peter's  Church  and  the  Geological  Hall  now 
stand.  Upcn  its  top,  during  more  than  two  centuries,  have  been  put  up  a 
succession  of  rude  blockhouses,  wooden  forts,  stone  fortress,  the  old 
Capitol,  the  vast  structure  now  brought  into  use,  which  ranks  among 
the  great  buildings  of  the  world.  It  was  not  until  the  beginning  of  this 
century  that  the  face  of  the  bluff  was  graded  down  so  that  State  street 
could  be  made  an  avenue  leading  to  the  western  part  of  the  city.  In  1614 
from  Nova  Scotia  to  the  Spanish  forts  in  Florida  lay  a  wilderness  unbroken 
save  by  the  feeble  and  disorganized  settlement  at  Jamestown  ;  and  as 
that  was  afterwards  abandoned,  Albany  is  the  oldest  town  and  oldest 
chartered  city  in  the  thirteen  original  States.  At  the  time  of  Hudson's 
discovery  a  large  share  of  the  earth's  surface  was  unknown  to  civilized 
nations.  It  was  a  period  in  the  history  of  Holland  when,  in  the  words 
of  its  New  England  historian,  "  in  every  branch  of  human  industry  these 
republicans  took  the  lead."  Its  navigators  were  bold  and  enterprising. 
When  they  decided  upon  a  permanent  settlement  on  this  continent  they 
did  not,  like  other  people,  plant  themselves  upon  the  seaboard,  but 
boldly  pushed  through  the  highlands  to  the  head  of  navigation  and  laid 
the  foundation  of  a  city  west  of  the  Allegheny  barriers.  This  fact  has 
been  potent  in  its  influence  cn  the  history  of  our  country.  They  placed 
themselves  upon  the  pivotal  point,  upon  which  so  many  of  its  great 
events  were  to  turn.  The  flow  of  the  Hudson  would  bear  them  to  the 
Atlantic  through  the  very  roots  of  the  Alleghenies.  The  level  valleys 
of  the  upper  Hudson  and  the  Mohawk  opened  easy  pathways  to  the 
St.  Lawrence  on  the  north,  and  to  the  great  lakes  and  tributaries  of  the 
Mississippi  on  the  west.  We,  who  are  proud  of  our  English  descent, 
must  admit  that  no  other  people  were  so  well  fitted  as  the  Hollanders 


220        INFLUENCE  OF  NEW  YORK  ON  AMERICAN  JURISPRUDENCE 


to  hold  this  commanding  position,  and  to  defeat  the  designs  of  the 
French  upon  this  continent.  Their  commercial  enterprises  in  every 
quarter  of  the  world  had  taught  them  how  to  deal  with  savage  tribes. 
Here  they  were  brought  into  contact  with  the  Iroquois.  This  powerful 
confederacv  held  control  over  the  country  from  the  coast  to  the  Missis- 
sippi and  Illinois  rivers,  and  from  north  of  the  great  lakes  to  the 
present  State  of  North  Carolina. 

Those  who  have  not  studied  with  care  the  details  of  our  colonial 
history  can  have  but  a  faint  idea  of  the  power  wielded  by  this  Indian 
Confederacy,  or  the  terror  with  which  they  had  filled  the  minds  of  other 
tribes.  In  his  exploration  in  Virginia,  Captain  Smith  was  told  by  the 
Indians  whom  he  met  in  that  region,  that  the  Iroquois  were  so  powerful 
that  they  waged  war  with  the  whole  world. 

Colden  says  in  his  history,  "  I  have  been  told  by  old  men  of  New 
England,  who  remembered  the  time  when  the  Mohawks  made  war  on 
their  Indians,  that  as  soon  as  a  single  Mohawk  was  discovered  in  the 
countrv  these  Indians  raised  a  cry  from  hill  to  hill,  '  A  Mohawk,  a 
Mohawk,'  upon  which  they  all  fled  like  sheep  before  wolves,  without 
attempting  to  make  the  least  resistance,  whatever  odds  were  on  their 
side.  All  the  nations  around  them  have  for  many  years  entirely  sub- 
mitted to  them,  and  pay  a  yearly  tribute  to  them  in  wampum." 

For  nearly  a  hundred  years  the  monarchs  of  France  and  Britain 
sought  their  alliance,  and  used  every  subtlety  of  diplomacy  to  gain 
their  good  will.  It  was  felt  upon  both  sides  that  these  savages  held  the 
balance  of  power.  It  was  only  through  them  that  Great  Britain  could 
make  a  claim  to  any  part  of  the  territory  of  New  York  west  of  Rome, 
or  north  of  the  dividing  ridge  from  which  flow  the  waters  into  the  St. 
Lawrence  and  the  Hudson. 

I  wish  to  bring  into  view  those  facts  in  nature  and  in  the  course 
of  events  which  have  given  our  State  its  prominence  in  jurisprudence. 
From  the  outset,  the  government  of  the  territories  of  New  York, 
under  all  flags,  has  excelled  in  this  respect,  and  has  exerted  an 
influence  in  that  greater  than  it  has  had  in  other  departments  of 
our  social  and  political  systems.  The  assertion  of  this  fact  does  not 
grow  out  of  any  undue  partiality  with  regard  to  my  native  State.  It 
is  upheld  by  the  testimony  of  those  who  were  not  at  all  times  disposed 
to  speak  well  of  those  who  founded  or  controlled  it.  John  Adams  wrote 
to  Chief-Justice  Jay  that  the  first  constitution  of  New  York  excelled 
that  of  all  other  States.  Attorney  General  Randolph,  of  Virginia, 
states  that  the  contests  of  its  colonies  with  the  royal  Governors  were 


INFLUENCE  OF  NEW  YORK  ON  AMERICAN  JURISPRUDENCE  221 


conducted  with  signal  ability,  and  he  pronounced  their  protests  and 
arguments  to  be  the  ablest  expositions  of  the  rights  of  popular  repre- 
sentatives. The  historian,  Pitkins,  of  Connecticut,  says  that  the 
resolutions  of  the  New  York  Colonial  Assembly  were  drawn  with 
consummate  ability ;  and  "  breathed  a  spirit  more  bold  and  decided 
than  of  any  other  colony."  When  we  read  the  constitutions  of  the 
Western  States,  or  the  decisions  of  their  courts,  or  note  the  Acts  of 
their  Legislatures,  we  see  that  our  judiciary  and  our  civil  polity  have 
exerted  a  marked  influence  in  the  newer  sections  of  the  Union.  I 
have  said  that  the  first  colonists  were  confronted  at  Albany  by  the 
Indian  confederacy.  We  must  not  fall  into  the  error  of  thinking  that 
this  merely  involved  a  savage  warfare,  or  led  to  a  system  of  over- 
reaching ignorant  savages  after  the  fashion  of  our  times.  The  Iroquois 
were  not  only  the  proud  and  powerful  conquerors  of  a  vast  territory, 
but,  by  the  testimony  even  of  their  enemies,  they  were  a  politic  people. 

D.  La  Potiere,  a  Frenchman  and  an  enemy,  says  in  his  history  of 
North  America:  "When  we  speak  of  the  Five  Nations  in  France 
they  are  thought,  by  a  common  mistake,  to  be  mere  Barbarians,  always 
thirsting  for  blood  ;  but  their  characters  are  very  different  They  are 
indeed,  the  fiercest  and  most  formidable  people  in  North  America,  and 
at  the  same  time  are  as  politic  and  judicious  as  can  well  be  con- 
ceived, and  this  appears  from  their  management  of  all  affairs  which 
they  have  not  only  with  the  French  and  English,  but  likewise  with 
almost  all  of  the  Indians  of  this  vast  continent." 

Colden,  alluding  to  their  civil  polity,  says  in  1747:  "  Each  of  these 
nations  is  an  absolute  republic  by  itself,  and  every  castle  in  each  nation 
is  governed,  in  all  public  affairs,  by  its  own  sachems  or  old  men.  The 
authority  of  these  rulers  is  gained  by  and  consists  wholly  in  the 
opinion  the  rest  of  the  nation  have  of  their  integrity  and  wisdom. 
Their  great  men,  both  sachems  and  captains,  are  generally  poorer 
than  the  common  people,  and  they  affect  to  give  away  and  distribute 
all  the  presents  or  plunder  they  get  in  their  treaties  or  in  wars,  so  as 
to  leave  nothing  to  themselves.  There  is  not  a  man  in  the  members 
of  the  Five  Nations  who  has  gained  his  office  otherwise  than  by 
merit.  There  is  not  the  least  salary,  or  any  sort  of  profit  annexed  to 
any  office  to  tempt  the  covetous  or  sordid,  but  on  the  contrary,  every 
unworthy  action  is  unavoidably  attended  with  the  forfeiture  of  their 
commissions ;  for  their  authority  is  only  the  esteem  of  the  people,  and 
ceases  the  moment  that  esteem  is  lost."  To  maintain  peace  with  this 
powerful  confederacy,  to  hold  them  in  alliance  against  the  Crown  of 


222        INFLUENCE  OF  NEW  YORK  ON  AMERICAN  JURISPRUDENCE 


France,  demanded  prudence,  courage  and  ability  of  a  high  order. 
These  were  developed  to  such  degree  that  after  the  power  of  the 
Hollanders  was  overthrown,  and  during  a  century  of  struggle  for 
supremacy  on  this  continent,  the  British  government  mainly  relied 
upon  the  influence  of  citizens  of  Albany  to  keep  the  Iroquois  from 
going  over  to  the  French.  In  doing  this  they  had  not  only  to  cope  with 
the  suspicion  of  the  Indians,  with  the  military  power  of  France,  but 
also  with  influence  of  French  missionaries,  who  exhibited  the  most 
remarkable  religious  zeal,  self-sacrifice  and  courage  ever  displayed  on  our 
continent.  These  did  not  content  themselves  with  founding  colonies 
in  which  their  religious  views  should  govern,  but  they  boldly  pushed 
their  way  through  the  vast  wilderness  of  this  continent  to  unknown 
savage  tribes,  with  no  protection  save  that  which  zeal  and  faith  might 
give  them  in  the  eyes  of  those  who  looked  upon  all  strangers  as  those 
whom  they  should  destroy.  Outstripping  the  march  of  armies,  or  the 
enterprise  of  trade  in  its  greed  for  gold,  they  traversed  North  America  to 
such  extent,  that  the  scenes  of  their  labors  were  not  in  many  cases  reached 
by  our  pioneer  settlers  until  the  lapse  of  nearly  a  century.  This  zeal, 
this  courage,  that  never  shrunk  from  martyrdom,  was  exerted  to  detach 
the  Iroquois  from  the  British  alliance.  Many  lost  their  lives  in  these 
attempts,  suffering  cruel  torments ;  one  was  burned  at  the  stake  in  the 
valley  of  the  Mohawk.  To  contend  against  their  efforts  was  no  mean 
training  in  diplomacy  and  in  statesmanship.  Mainly  through  the 
influence  of  the  citizens  of  Albany  this  was  done.  The  Iroquois  were 
taught  to  look  upon  the  ground  on  which  the  new  Capitol  stands 
as  a  place  sacred  to  keeping  bright  the  chains  of  amity.  With 
that  great  regard  for  usage  which  marks  unlettered  tribes,  they  called 
it  the  ancient  place  of  treaties  ;  and  this  term,  in  their  minds,  meant  more 
than  mere  antiquity  ;  it  meant  a  higher  degree  of  solemnity,  and  more 
lasting  obligations  in  treaties  made  at  Albany  than  elsewhere. 

The  diplomatic  dealings  with  these  tribes  did  not  relate  to  the  safety 
of  Albany,  or  to  the  interest  of  the  province  of  New  York  alone,  but  they 
concerned  the  safety  and  the  interest  of  all  the  British  colonies  on  this 
continent.  Whoever  will  stud)7  the  records  of  our  State  from  the  earliest 
days,  will  find  that  from  Nova  Scotia  to  Georgia,  nearly  one  thousand 
miles,  agents  and  officers  of  all  the  colonies  resorted  to  Albany  to  gain 
the  aid  of  its  citizens  in  making  peace  with  the  Iroquois,  or  to  obtain 
their  help  against  other  Indian  tribes  in  warfare,  or  to  get  them  to  act 
as  the  defenders  of  the  feeble  settlements  when  menaced  with  destruc- 
tion.   When  the  Governor  of  Nova  Scotia  sought  to  check  Indian  war 


INFLUENCE  OF  NEW  YORK  ON  AMERICAN  JURISPRUDENCE  223 


upon  its  borders,  agents  were  sent  to  this  point.  When  King  Phillip 
threatened  the  existence  of  the  Puritans  in  New  England,  Massachusetts 
and  Connecticut  sent  their  commissioners  here  to  invoke  the  aid  of  the 
Mohawks.  When  the  Carolinas  were  reduced  to  desperate  straits  by 
Indian  wars,  their  Governor  sought  in  Albany  to  persuade  the  Five 
Nations  to  interpose  in  their  behalf.  Such  events  mark  almost  every 
year  of  colonial  history,  and  their  mere  lists  show  clearly  that  this  was 
the  political  center  where  consultations  were  held,  and  where  the  com- 
mon interest  and  policy  were  considered.  Not  only  did  Indian  affairs 
thus  train  men  in  jurisprudence,  but  the  struggle  between  France  and 
England  did  much  to  educate  all  the  colonists.  It  concerned  the 
greatest  of  all  questions  which  have  been  settled  on  this  conti- 
nent, namely :  Should  its  civilization,  customs  and  laws  be  those 
of  France  or  of  England  ?  The  result  for  many  years  was  uncertain. 
The  warfare  was  not  merely  that  of  savage  tribes,  or  of  rude 
border  men  almost  as  wild,  for  both  of  the  great  powers  sent  here 
their  disciplined  armies,  led  by  men  of  rank,  skill  and  culture.  The 
contest  was  not  waged  here  alone,  but  it  was  connected  with  the 
ambitious  designs  of  Louis  the  Great  for  the  domination  of  Europe. 
His  wars,  which  fill  so  many  pages  of  history,  and  so  deeply  affected 
the  rights  and  liberties  of  nations,  were  watched  with  interest  by  the 
colonists,  who  were  made  intelligent  with  regard  to  them  by  the  events 
on  their  own  soil,  in  which  they  bore  a  part.  The  battles  of  Marl- 
borough and  the  victory  at  Blenheim  concerned  this  continent  more 
than  that  of  Europe  ;  for  had  the  result  been  reversed,  the  British 
would  have  been  confined  to  the  narrow  strip  of  seacoast  lying 
between  the  Atlantic  and  the  eastern  slope  of  the  Alleghenies.  In  that 
and  all  other  foreign  wars  in  which  our  country  has  been  engaged, 
Albany  was  the  point  from  which  most  of  the  forces  were  sent  out. 
In  the  history  of  our  country,  from  the  first  invasion  of  the  French  in 
1665,  that  part  of  New  York  lying  along  Lake  Champlain  and  the 
upper  Hudson  has  been  the  field  of  strife  and  blood  in  fifteen  cam- 
paigns ;  an  equal  number  of  expeditions  have  followed  the  course  of 
the  Mohawk.  So  important  was  the  position  of  this  province  during 
the  colonial  period,  that  the  Lords  of  Trade  and  Plantations  urged  the 
Crown,  in  1721,  to  make  it  the  seat  of  government  of  a  Captain-General, 
who  should  have  control  over  all  the  colonies  in  matters  relating  to 
military  affairs  and  the  interests  of  the  King. 

The  colonial  French  war  involved  the  combatants  in  greater  cost  of 
blood  and  money  than  the  revolutionary  contest.     In  many  ways  it 


224        INFLUENCE  OF  NEW  YORK  ON  AMERICAN  JURISPRUDENCE 


was  more  important  in  its  influences.  It  determined  the  character  of  the 
civilization  of  this  continent,  its  habits  and  usages.  Its  independence  of 
Europe,  whatever  might  be  the  result,  was  a  matter  of  time.  In  1757 
Lord  Chatham,  determined  to  expel  the  French  from  this  continent, 
placed  Lord  Amherst  at  the  head  of  an  army  of  fifty  thousand  men ; 
a  greater  force  than  was  employed  against  us  at  any  time  during 
the  Revolutionary  war.  One  division  was  sent  up  the  valley  of  the 
Mohawk  from  Albany,  another  by  the  way  of  the  upper  Hudson 
through  Lake  Champlain,  to  Canada,  while  the  British  fleet  forced  its 
way  up  the  St.  Lawrence.  This  campaign  ended  in  the  capture  of 
Quebec,  the  dramatic  deaths  of  the  rival  heroes  Wolfe  and  Montcalm, 
and  the  extinction  of  the  French  power  on  the  eastern  side  of  this  con- 
tinent. The  cost  of  that  war  makes  a  large  item  in  the  present  debt 
of  Great  Britain.  More  than  ten  millions  of  dollars  were  spent  in 
fortifying  Crown  Point,  on  Lake  Champlain,  although  the  work  was 
never  finished. 

This  great  war,  from  the  nature  of  the  struggle  and  from  the  contrast 
between  the  British  and  French  governments  constantly  presented  to 
the  minds  of  the  colonists,  did  much  to  educate  the  people  Avith  regard  to 
public  affairs.  The  center  of  military  operations  became  the  center 
of  public  knowledge ;  for  at  that  day  there  was  but  little  inter- 
course save  that  which  grew  out  of  the  exigencies  of  war.  All 
the  aspects  of  the  colonial  history  of  New  York  show  that  its 
people  were  never  limited  in  their  views  to  the  interests  of  their  own 
province,  but  that  the  course  of  events  at  all  times  trained  them  to  a 
knowledge  of,  and  an  interest  in  the  affairs  of  other  colonies. 

But  the  lessons  of  Avar  and  diplomacy  with  foreign  enemies  fell  short  of 
the  knowledge  the  people  of  this  province  gained  in  their  contests  with 
the  royal  Governors.  Some  of  these,  like  Lord  Cornbury,  the  cousin  of 
Queen  Anne ;  the  colonial  Governor,  Clinton,  an  Admiral  in  the  British 
navy  and  a  relative  of  the  Duke  of  Newcastle,  then  head  of  the  British 
administration,  were  men  wanting  in  capacity  and  integrity.  All  their 
efforts  were  directed  to  get  money  to  mend  their  broken  fortunes.  New 
York  had  no  charter  which  defined  the  rights  of  the  colony.  In  their 
defence  they  were  forced  to  plant  themselves  upon  principles  of  jurispru- 
dence, and  were  thus  educated  to  clear  ideas  of  the  rights  of  governments, 
and  of  the  governed.  Their  discussions  can  be  read  to-day  with  profit 
by  those  who  care  to  learn  where  the  political  wisdom  was  gained 
which  enabled  our  fathers  to  frame  the  government  under  which  we 
live.    Many  years  before  the  crown  drove  the  colonies  to  united  resist- 


INFLUENCE  OF  NEW  YORK  ON  AMERICAN  JURISPRUDENCE  225 


ance  to  its  action,  the  delegates  to  the  Colonial  Assembly  in  New  York 
had  asserted  and  maintained  the  rights  for  which  our  fathers  battled  in 
the  Revolution.  The  Act  declaring  what  are  "  the  rights  and  privileges  of 
their  Majesty 's  subjects  inhabiting  within  their  province  of  New  York"  passed 
in  1691,  in  the  reign  of  William  and  Mary,  is  as  clear  and  firm  in  tone 
as  those  which  were  asserted  nearly  one  century  later  at  the  outbreak 
of  the  war  for  independence. 

Besides  the  facts  I  have  set  forth  which  educated  the  people  of  this 
province  with  regard  to  their  rights,  to  the  policy  of  legislation  and  the 
duties  of  the  judiciary,  there  was  another  which  gave  breadth  and  wisdom 
to  our  jurisprudence,  beyond  that  exhibited  elsewhere.  While  the  Hol- 
landers of  that  day  did  not  come  up  to  our  ideas  of  toleration,  they 
were  in  advance  of  other  nations  in  this  respect.  They  were  also  free 
from  the  prejudices  against  the  people  of  other  countries,  which  was  a 
marked  feature  of  their  times  ;  and  particularly  with  the  English.  We 
are  apt  to  charge  upon  the  theology  of  the  Puritans  of  New  England 
much  of  the  harshness  that  was  due  to  their  nationality.  When  Theo- 
dore Ward,  one  of  the  authors  of  the  Code  of  Liberty  of  Massachusetts, 
in  his  book  entitled,  "  Letters  from  the  Simple  Cobbler  of  Agawam," 
said  that  he  hated  religious  toleration  which  make  a  hell  upon  earth, 
and  that  he  hated  to  have  foreigners  come  to  dwell  in  the  land, "  it  was 
the  Englishman  more  than  the  Puritan  that  spoke. 

The  same  spirit  was  shown  by  that  race  in  other  colonies. 
Even  in  Maryland,  where  the  first  Catholic  proprietor,  by  his 
charter,  granted  religious  freedom  to  all  ;  when  those  who  dif- 
fered from  his  religious  views  gained  power  they  persecuted  those  of 
his  creed.  Nor  was  this  hostility  shown  alone  towards  those  differing 
from  them  in  faith  :  the  English  in  Carolina  for  a  long  time  protested 
against  giving  Huguenots  the  rights  of  citizenship  or  of  holding  prop- 
erty. The  same  spirit  involved  them  in  constant  wars  with  the  Indian 
tribes.  The  rule  that  English  interests  and  not  the  rights  of  others 
should  regulate  action,  has  not  lost  its  power.  It  involves  Great  Britain 
in  constant  wars  in  all  quarters  of  our  globe,  and  it  convinces  the 
British  people  that  they  are  wronged  and  imposed  upon  by  the  most 
remote,  feeble  and  ignorant  tribes.  If  the  English  instead  of  the 
Hollanders  had  »  first  settled  Albany  it  is  doubtful  if  they  would 
have  kept  an  alliance  with  the  Iroquois.  If  they  had  failed  to  do 
this  they  would  have  lost  their  claim  to  the  country  drained  into  the 
St.  Lawrence  and  Mississippi ;  for  their  only  offset  to  the  French 
right  of  discovery  of  these  rivers  was  the  title  of  the  Iroquois  to  the 


226        INFLUENCE  OF  NEW  YORK  ON  AMERICAN  JURISPRUDENCE 


regions  in  dispute.  We  who  are  of  English  descent,  and  who  are 
proud  of  our  lineage,  have  reason  to  rejoice  that  the  Hollanders  first 
occupied  this  State.  Their  wide  commerce  had  brought  them  in  contact 
with  all  races.  Their  wealth  and  power  grew  out  of  intercourse  with 
others.  They  welcomed  all  incomers  to  their  territory.  This  drew  to 
this  province  a  greater  variety  of  nationalities  than  can  be  found  in 
the  histories  of  the  foundations  of  other  States.  This  made  our  popu- 
lation cosmopolitan ;  and  beyond  all  other  facts  gave  to  our  jurispru- 
dence its  superiority.  It  saved  us  from  provincial  prejudices,  and  from 
the  narrowness  engendered  in  the  minds  of  those  who  hear  but  one  side 
of  questions,  and  witness  but  one  phase  of  teaching.  The  influence 
of  this  fact  has  not  been  limited  to  our  State.  Its  people,  holding  the 
gateways  into  the  interior  of  our  continent,  have  welcomed  all  classes 
of  immigrants.  It  is  our  faith  that  the  same  natural  features  and 
diversity  of  lineage  and  creed  that  have  made  New  York  the  Empire 
State  will,  on  a  grander  scale,  give  to  our  country  a  higher  civilization 
than  the  world  has  yet  seen.  The  history  of  this  State  enables  us  to 
forecast  the  future  of  our  union.  Its  great  rivers  and  lakes  and  valleys 
will  ever  make  living  channels  of  commerce.  Its  varied  climate  and 
productions  will  keep  alive  active  and  constant  intercourse  and  exchange 
among  its  people.  Its  differing  creeds  and  its  varied  lineages  will 
teach  a  larger  liberality  and  more  generous  sympathies  than  exist  on 
smaller  theatres  with  narrower  ranges  of  thought,  and  more  limited 
views  of  social  or  political  subjects. 

Since  the  independence  of  our  country,  the  natural  features  of  New 
York  and  the  character  of  its  population  have  been  potent,  not  only  in 
promoting  its  own  growth  and  greatness,  but  that  of  our  whole 
country.  Its  first  constitution  showed  a  greater  knowledge  of 
jurisprudence  than  was  exhibited  elsewhere.  It  is  a  striking,  and 
I  think  an  unparalleled  fact  in  the  history  of  constitutions  that 
upon  the  Committee  of  thirteen  appointed  to  draft  that  instru- 
ment, there  were  men  representing  no  less  than  six  nationalities. 
This  diversity  of  races  which,  from  the  earliest  day  to  the  present 
time,  marks  the  list  of  those  who  have  filled  the  office  of  Judges,  Legis- 
lators and  Governors,  has  had  a  great  influence  in  shaping  the  civil 
polity  of  our  State. 

While  the  basis  of  our  civilization  is  English,  it  has  been  re-in- 
forced  and  liberalized  by  other  elements.  Our  great  country  will 
not  be  cut  up  as  Europe  is  into  smaller  districts,  whose  people  are 
made  strangers  by  differences  of  languages  and  laws.    On  our  continent, 


INFLUENCE  OF  NEW  YORK  ON  AMERICAN  JURISPRUDENCE 


227 


in  the  future,  with  its  vast  population,  all  forms  of  merit  will  gain  higher 
rewards,  and  the  applause  of  greater  multitudes  than  elsewhere.  Our 
literature  will  receive  a  wider  support,  and  will  draw  its  inspiration  from 
the  legends,  the  histories,  the  aspirations,  not  of  one,  but  of  many  nation- 
alities. The  position  of  New  York,  with  its  command  of  the  harbor 
which  first  welcomes  the  incomers  from  Europe,  and  of  the  great  path- 
ways through  which  they  seek  their  homes  in  the  interior,  has  done  much 
to  shape  our  social  organization,  and  to  hold  in  check  the  prejudices 
which  sometimes  show  themselves  in  the  minds  of  those  who  are 
only  familiar  with  social  ideas  which  prevail  outside  of  the  great  theatres 
of  action. 

The  most  important  subjects  of  our  legislation  also  relate  to  facts 
which  concern  other  States  as  well  as  our  own.  These  have  always 
kept  alive  in  the  minds  of  our  people  their  relationship  to  the  interests 
and  prosperity  of  other  parts  of  our  Union.  We  have  a  striking  proof 
of  this  in  the  history  of  our  internal  improvements.  When  we  were 
inferior  to  Virginia  and  Massachusetts  in  numbers,  wealth,  and  power; 
when  the  hardy  settlers  in  the  then  wilderness  of  Western  New  York 
were  impoverished  because  there  was  no  way  of  reaching  markets 
with  their  products  ;  when  in  the  days  of  our  poverty  we  undertook 
the  work  of  uniting  the  great  lakes  with  the  harbor  of  New  York, 
which  was  then  deemed,  not  only  in  our  own  country,  but  in  Europe, 
one  of  the  bold  enterprises  of  the  world,  it  was  not  urged  alone  upon 
the  ground  of  our  necessities,  or  the  gain  it  would  bring  to  ourselves, 
but  rising  above  local  interests,  in  the  preamble  of  the  Act  by  which 
this  State  entered  upon  this  great  work,  these  words  were  used : 
"  Whereas — navigable  communication  between  Lakes  Erie  and  Cham- 
plain  and  the  Atlantic  ocean  by  means  of  canals  connected  with  the 
Hudson  river  will  promote  agriculture,  manufactures  and  commerce, 
mitigate  the  calamities  of  war  and  enhance  the  blessings  of  peace, 
consolidate  the  Union,  and  advance  the  prosperity,  and  elevate  the 
character  of  the  United  States ;  And  Whereas,  it  is  the  incumbent  duty 
of  the  people  of  this  State  to  avail  themselves  of  the  means  which  the 
Almighty  has  placed  in  their  power  for  the  production  of  such  signal, 
extensive  and  lasting  benefits  to  the  human  race,"  etc.  These  grand, 
patriotic  considerations,  and  not  merely  local  gain,  were  urged  by 
leading  men  as  reasons  for  taking  the  hazard  of  an  undertaking  deemed 
by  many  too  great  for  our  resources. 

Acting  upon  this  wise  and  enlarged  policy  of  identifying  ourselves 
with  the  common  interest  of  our  Union,  although  Congress  and  the 


228        INFLUENCE  OF  NEW  YORK  ON  AMERICAN  JURISPRUDENCE 


Legislatures  of  other  States  refused  to  aid  the  project,  our  State  has 
not  sought,  like  the  robbers  upon  the  Rhine,  to  make  its  command 
of  the  avenues  of  commerce  the  means  of  extorting  tribute  from  those 
who  have  used  our  channels,  but  it  has  reduced  tolls  upon  its  canals 
to  the  lowest  point,  and  has  thrown  off  from  our  lines  of  railroads  the 
income  which,  by  charters,  were  to  be  paid  into  the  treasury  of  the 
State.  It  cannot  be  charged  against  New  York  that  it  has  ever  sought 
to  build  up  any  of  its  special  interests,  or  to  support  any  of  its  peculiar 
industries  by  taxation  levied  upon  the  people  of  this  Union. 

It  has  never  faltered  in  the  support  of  the  General  Government  in 
its  war  with  foreign  enemies,  although  its  territories  were  most  exposed 
to  attack,  and  most  frequently  the  scenes  of  battle  and  of  bloodshed. 
At  the  outset  of  the  revolution,  although  New  York  of  all  the  colonies 
had  been  the  first,  the  most  clear  and  persistent  in  asserting  its  rights 
through  a  long  series  of  years,  the  British  King  hoped  its  people  would 
not  be  united  in  resistance  to  his  authority.  The  patronage  of  the 
Crown  and  the  expenditures  for  armies  and  free  grants  of  land  had  built 
up  strong  interest  in  its  favor.  But  its  great  reliance  was  upon  the 
exposed  condition  of  the  province  in  the  case  of  war.  Its  western 
sections  and  the  valley  of  the  Mohawk  were  filled  with  Indian  tribes 
governed  by  the  agents  of  the  King.  These  were  ready  to  kill  without 
regard  to  age,  sex  or  condition.  Lake  Champlain  and  the  upper 
Hudson  made  a  pathway  from  Canada  into  the  heart  of  the  province, 
and  British  fleets  could  control  the  harbor  of  New  York.  The  patriots 
of  the  colony  had  been  taught  by  the  past  that  when  they  took  up  arms 
they  were  to  suffer  the  horrors  of  Indian  warfare  and  the  calamities 
of  invading  armies.  They  knew  the  contest  must  turn  upon  the  control 
of  their  territories,  and  that  war  could  never  cease  here  until  liberty  was 
won  or  lost.  Other  sections  might  at  times  be  invaded,  but  neither  party 
could  withdraw  its  forces  from  the  banks  of  the  Hudson  while  the  conflict 
lasted.  They  did  not  shrink  from  perils  clearly  foreseen.  They  were 
ready  to  encounter  savage  hordes,  disciplined  armies,  or  domestic  foes. 
In  no  other  quarter  was  the  contest  so  fierce  and  unrelenting.  It  did 
not  merely  demand  the  enlistment  of  men  to  fight  upon  the  battlefields, 
but  the  exposure  of  their  homes  and  their  families  to  the  torch,  the 
tomahawk,  and  the  brutality  of  hireling  soldiers.  The  massacres  at  Cherry 
valley,  along  the  Mohawk,  and  on  the  hills  which  border  it,  show  the 
terrible  sufferings  in  the  homes  of  those  who  lived  upon  that  frontier. 
While  New  York  and  New  Jersey  were  the  great  centers  of  the 
revolutionary  struggle,  there  are  no  shadows  upon  the  patriotism  of 


I 

INFLUENCE  OF  NEW  YORK  ON  AMERICAN  JURISPRUDENCE  229 

either.  Adherents  to  the  Crown  increased  the  dangers  of  the  patriots 
and  in  some  cases  caused  the  destruction  of  their  lives ;  but  this  added 
to  the  lustre  of  their  services,  and  gave  a  higher  value  to  their  patriotism 
by  the  demands  thus  made  upon  their  vigilance  and  energy. 

In  the  war  with  Great  Britain  in  181 2  New  York  was  ardent  in  the 
support  of  the  cause  of  our  country,  its  rights  and  its  honor.  While 
elsewhere  there  were  murmurs  of  discontent,  and  threats  of  resistance 
to  measures  for  filling  the  ranks  of  our  armies,  this  State  was  resolute  in 
the  support  of  the  policy  of  our  government,  although  it  led  to  the 
invasion  of  its  territories  by  the  same  pathways  which  had  been 
traversed  by  hostile  forces  on  so  many  occasions.  In  the  sad 
civil  war  New  York  sent  to  the  support  of  our  Government  more 
men  in  proportion  to  its  population  than  any  of  the  States  border- 
ing on  the  Atlantic,  and  in  proportion  to  its  enrollment,  more  than  any 
in  the  Union.  In  some  instances,  single  Congressional  districts  fur- 
nished quotas  greater  than  those  of  other  States  with  more  than  twice 
their  population  and  representation. 

This  is  shown  by  one  of  the  calls  made  by  the  Government  for 
soldiers. 

The  average  ratio  of  enrollment  to  the  male  popu- 
lation in  Western  States  was      .  .  19  per  cent. 

In  New  Jersey,     .....  20  do. 

In  Pennsylvania,        .....      i8j  do. 

In  New  England,  .  .  .  .  17  do. 

In  State  of  New  York  .  .  .  .22  do. 

Massachusetts,  with  ten  Congressmen  and  a  popula- 
tion of  1,231,006,  had  to  furnish  under  a  call  for 
300,000  men  .....  15,126 

The  first  nine  Congressional  districts  of  the  State  of 
New  York,  with  a  population  of  1,218,949,  were 
called  upon  for   ......  25,166 

The  quota  of  Vermont  and  New  Hampshire,  with  a 
united  population  of  641,171,  and  six  Represent- 
atives in  Congress  and  four  Senators,  was  .  7,099 

The  quota  of  two  Congressional  districts  in  New  York, 
the  4th  and  6th,  with  a  population  of  283,229, 
was        .......  7,628 

Although  these  excessive  demands  were  modified,  they  were  still 
larger  than  the  calls  made  on  other  States. 


230        INFLUENCE  OF  NEW  YORK  ON  AMERICAN  JURISPRUDENCE 

The  policy  of  our  State  with  regard  to  education  has  been  enlarged 
and  liberal.  It  has  sought  by  all  methods  to  give  knowledge  to  all 
classes,  and  to  carry  learning  in  its  widest  forms  into  all  sections  of  our 
State,  to  enable  all,  at  the  least  cost,  to  gain  the  benefits  of  higher 
education  ;  so  that  those  who  could  not  themselves  follow  all 
branches  of  science,  or  literature,  could  reap  their  benefit  by  association 
with  those  who,  having  had  greater  advantages,  would  diffuse  them  to 
the  mass  of  community,  as  electricity  passes  from  one  object  to  another, 
in  ways  subtle  and  yet  perfect  in  results.  The  early  men  of  our 
State  saw  the  wants  and  advantages  of  our  social  structure  and  our 
equal-intercourse.  They  felt  that  the  teachings  of  the  pulpit  and  press, 
the  lecturer's  stand  and  speaker's  rostrum,  could  be  brought  into  action 
as  means  of  instruction,  and  they  put  upon  our  statute  book  a  grand 
declaration  "  that  the  University  of  the  State  of  New  York  is  hereby 
created."  These  few  words  meant  that  our  whole  territory,  not  some 
favored  spot,  was  to  be  a  seat  of  learning.  It  taught  the  grand  truth 
that  learning  in  its  best  estate  is  the  right  of  all  who  seek  it,  and 
should  be  placed  within  the  reach  of  all. 

It  will  add  to  the  interest  with  which  the  new  Capitol,  just  com- 
pleted, will  be  viewed,  if  it  shall  be  looked  upon  not  only  with  regard 
to  its  size,  its  proportions  and  adornments ;  not  only  as  a  structure 
devoted  to  the  legislation  of  a  great  State,  but  also  in  some  degree  as  a 
memorial  of  its  past  history,  and  of  the  events  of  the  place  on  which 
it  stands,  and  of  that  wonderful  system  of  valleys  and  hills  of  which  it 
is  the  center.  No  man  can  enter  its  walls,  devoted  as  they  are  to  the 
grave  and  sacred  purposes  of  legislation,  without  a  fervent  prayer  that 
those  who  shall  exercise  in  it  the  powers  of  Governors,  of  Judges  and 
of  Lawgivers,  may  equal  the  virtues  and  wisdom  displayed  by  those 
who  have  heretofore  held  the  high  office  of  guarding  the  rights  and 
promoting  the  welfare  of  the  people  of  this  State.  But  those  who 
are  to  make  or  to  administer  laws  are  not  to  allow  their  aspirations  for 
usefulness  to  be  limited  by  the  measures  of  the  past.  When  they  have 
studied  its  history,  when  they  have  seen  the  height  in  power  to 
which  New  York  has  been  lifted,  they  will  be  admonished  that  its 
motto  demands  still  greater  results  at  their  hands,  for  the  word 
Excelsior  glitters  upon  the  escutcheon  of  our  State,  teaching  the  duties 
of  higher  motives  and  more  lofty  patriotism  than  even  those  which  have 
marked  its  past  history. 

HORATIO  SEYMOUR 


\ 


THE 


MAGAZINE  OF  AMERICAN  HISTORY 

WITH  NOTES  AND  QUERIES. 


OPINIONS  OF  DISTINGUISHED  HISTORICAL  STUDENTS. 


From  Mr.  JAMES  PARTON,  author  of  the  "Life 
of  Benjamin  Franklin,"  &c. 

*  *  Your  Magazine  improves  constantly.  I  am 
indebted  to  it  every  month  for  pleasure  and  instruction. 


From  Mr.  FRANCIS  PARKMAN,  the  Historian, 
Boston,  Mass. 

*  *  There  can  be  but  one  opinion  as  to  the  value 
of  the  Magazine  of  American  History.  Many  of  the 
original  papers  it  contains  are  of  great  interest,  and  in 
its  department  of  documents  it  has  preserved  and  made 
accessible  some  curious  and  important  papers.  Its 
notices  of  new  publications  supply  the  best  means  I 
know  for  keeping. au  couranl  of  contemporary  writings, 
great  and  small,  on  the  subject  to  which  it  is  devoted. 
Every  student  of  American  History  has  a  stake  in  its 
success  and  prosperity. 


From  Mr.  SIDNEY  HOWARD  GAY,  West  New 
Brighton,  Staten  Island,  N.  Y. 

I  can  say  frankly  after  a  year's  reading,  that  I  read 
your  Magazine  always  with  profit  and  pleasure.  To  a 
lover  of  books,  the  beauty  of  its  "  get  up  "  is  charming  ; 
to  one  who  values  the  inside  as  well  as  the  outside  of 
books,  the  choice  and  treatment  of  subjects,  the  schol- 
arly tone,  and  the  real  historical  knowledge  it  contains, 
make  it  indispensable  to  every  student  of  American 
History,  of  which  there  is  still  so  much  to  be  learned. 


From  Mr.  B.  F.  DeCOSTA,  New  York. 

*  *  I  take  pleasure  in  adding  my  testimony  to  that 
of  the  large  number  of  historical  students  who  have 
expressed  so  decided  an  opinion  respecting  the  import- 
ance and  value  of  the  work  to  which  the  Magazine  of 
American  History  is  devoted. 


From  Hon.  JOHN  RUSSELL  BARTLETT, 

Providence,  R.  I. 
The  Magazine  of  American  History  fills  a  place  in 
our  literature  which  has  long  been  vacant.  Many  of  its 
contributions  are  from  scholars  known  to  fame,  and  are 
marked  for  their  thoroughness  of  research.  Other  good 
features  are  its  notices  of  new  publications  appertaining 
to  American  History,  to  the  Aborigines,  to  Ethnology, 
Genealogy,  etc.,  all  of  which  are  appropriate  in  a  Mag- 
az'ne  of  this  kind. 


From  Hon.  JOHN  JAY,  New  York  City. 

I  regard  your  Magazine  of  American  History  as  filling 
an  important  place  in  our  Literature.  It  is  gathering 
material-;  for  History  that  are  in  danger  of  being  lost, 
and  it  keeps  up  a  fresh  interest  in  the  memories  of  the 
past  whose  influence  was  never  more  essential  to  the 
respectability  of  the  American  character.  The  schol- 
arly and  judicious  tone  displayed  in  its  original  papers 
and  critical  reviews  and  notices  must  command  respect 
at  home  and  abroad. 


From  Mr.  JOHN  WARD  DEAN,  of  the  New  Eng- 
land Historic  Genealogic  Society,  Boston,  Mass. 
I  have  been  a  constant  reader  of  the  Magazine  of 
Ameiican  History,  which  for  nearly  two  years  has  been 
published  by  you,  and  have  a  very  high  opinion  of  the 
work.  The  Magazine  contains  papers  on  topics  of 
interest  in  the  history  of  our  country,  which  are  well 
written  and  embody  the  results  of  much  patient  research. 
Mr.  Stevens,  the  editor,  has  shown  good  taste  and  judg- 
ment in  the  management  of  the  work  ;  and  you  as  its 
publishers,  deserve  much  credit  for  its  fine  typographic 
appearance.  I  hope  the  liberal  patronage,  which  I  am 
told  it  has  received,  will  be -continued  and  increased. 


From  J.  M.  BASSETT,  San  Francisco,  Cal. 
I  regard  the  Magazine  as  the  most  valuable  of  his- 
torical publications. 


Subscription  Price,  $5.00  a  year,  postage  paid.  A  few  bound  Vols,  for  1877  and  1878  can 
be  had  as  follows. 

Cloth,  gilt  top,  uncut  edges,  -  -  $6.25 

Half  mor:    "  $7:50 


A.  S.  BARNES  &  CO.,  Publishers,  New  York  and  Chicago. 


